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Do not go gently into that good Declaratory Order
- 09 April 2019
- Tax Administration
- Nirvasha Singh and others
Important:
This article is based on tax law for the tax year ending 28 February 2020.
Authors: Nirvasha Singh and others
A declaratory order is a flexible remedy which can assist in clarifying issues of law expeditiously. It is by no means a new and faster means of obtaining certainty in disputes with the South African Revenue Service (SARS). The application for a declaratory order will only apply where the issue at hand is purely a question of law, or is interlocutory in nature
A taxpayer may appeal to the Tax Court after having exhausted all internal remedies provided in Chapter 9 of the Tax Administration Act, 28 of 2011 (the TAA).
Despite the fact that the Tax Court (as a court of first instance) generally has exclusive jurisdiction over tax cases,[1] the decision of the Commissioner is subject to judicial intervention in circumstances where the dispute concerns a question of law only.
In terms of section 118(3), where an appeal to the Tax Court involves an interpretation of the law only, the president of the Tax Court sitting alone (without a representative of the commercial community or an accountant), must decide the appeal. However, the Tax Court does not have the power to hear applications which are not specifically listed under Rule 52 of the Tax Court Rules.
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This article first appeared on webberwentzel.com.